28 March 2022 8:52 AM GMT
The Karnataka High Court has said that merely for the reason that the wife was demanding a separate house and that she was in the habit of leaving the matrimonial house and going to her sister's and parents' house, the same cannot be termed as "cruelty" for the purpose of seeking a decree of divorce by the husband. A division bench of Justice Alok Aradhe and Justice S Vishwajith...
The Karnataka High Court has said that merely for the reason that the wife was demanding a separate house and that she was in the habit of leaving the matrimonial house and going to her sister's and parents' house, the same cannot be termed as "cruelty" for the purpose of seeking a decree of divorce by the husband.
A division bench of Justice Alok Aradhe and Justice S Vishwajith Shetty also noted that,
"A decree of divorce on the ground of irretrievable failure of the marriage can be granted only by the Hon'ble Supreme Court in exercise of its powers under Article 142 of the Constitution of India and not by any other courts."
The court made the observations while setting aside the decree of divorce granted to a husband on the ground of cruelty and desertion by his wife.
The couple got married in 2002 as per Hindu rites and customs. The husband had approached the Family Court, Bangalore, seeking dissolution of the marriage contending that the appellant was demanding for setting up a separate house immediately after the marriage. It was his case that he lived with his widowed mother and a younger brother in his house and he had the responsibility to look after them and therefore, he had rejected the demand of the appellant for setting up a separate house.
Further, it was said that the wife was in a habit of quarrelling with his family members for no reason and she used to leave the matrimonial house and go to her sister's house and mother's house without informing him or his mother or brother. Because of this behaviour and conduct of the wife, his life was made miserable. In January 2007, the appellant-wife without informing him left the matrimonial home along with the child and there afterwards she did not return back.
A case was also registered by the wife against the husband and his relatives under Sections 498-A, 323, 504, 506 read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961, wherein they have been acquitted.
It was claimed that the wife had no intention to live with him and perform her matrimonial obligation and there are no possibilities of reconciliation and accordingly he had sought for dissolution of the marriage on the ground of cruelty as well as desertion.
The wife had opposed the petition and denied all the allegations levelled against her. Following the evidence and on perusing the documents relied on by the parties the trial court allowed the petition of the husband and dissolved the marriage by order dated March 15, 2016. The wife challenged the order before the high court.
It was said that the judge of the Family Court has erred in granting a decree of divorce since the husband had failed to prove the ground of cruelty and desertion against the wife. The Family Court has proceeded to allow the petition mainly for the reason that the wife had filed a criminal case against the husband and his relatives.
Further, that the wife had a valid reason to stay away from her husband and therefore it cannot be said that she had deserted the husband. The husband had thrown away the wife for having not brought enough dowry and there afterwards no attempt was made by him to bring her back and instead, he got issued a legal notice immediately there afterwards seeking divorce.
It was submitted the parties have been residing separately ever since the year 2007 and all efforts made for conciliation has failed and therefore, the marriage has irretrievably failed and there is no point in continuing such a marriage.
Further, it was said the wife had left the company of her husband without there being any valid reasons and she is also guilty of filing false complaint against her husband and his relatives only with an intention to harass and coerce them.
The bench noted, "The jurisdictional Magistrate had acquitted the accused persons in the said case (lodged by the wife against the husband) on the ground that the prosecution had failed to prove the guilt of the accused beyond reasonable doubt and therefore, they were entitled for the benefit of doubt. Therefore, it cannot be said that the wife had lodged a false complaint against the husband and his family members."
"Mere filing of a criminal case itself cannot be termed as "cruelty". For the purpose of Section 13(1)(ia) of the Act, "cruelty" could be wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger."
Then the court said the husband has not proved by examining any independent witness that his wife was in the habit of leaving the matrimonial house and she used to go to her sister's and parents' house without informing him.
It also relied on Om Prakash v. Rajni where the Delhi High Court has held that demand by the wife for a separate residence would not amount to "cruelty" in all cases.
The court also relied on the Supreme Court judgement in the case of Mangayakarasi –vs- M.Yuvaraj – AIR 2020 SC 1198, and said, "In the present case, the litigating parties have a daughter, who is aged about 19 years and admittedly she is in the custody of the appellant-wife. The outcome of this litigation will definitely have a bearing on her future life and the same may also have an effect on her marriage prospects."
Further the bench relied on the judgement of the Supreme Court in the case of Smt.Rohini Kumari –vs- Narendra Singh – AIR 1972 SC 459, wherein it is held that desertion within the meaning of Section 10(1)(a) of the Hindu Marriage Act read with the Explanation does not imply only a separate residence and separate living. It is also necessary that there must be a determination to put an end to marital relation and cohabitation.
Then the bench observed, "Without animus deserendi there can be no desertion within the meaning of Section 10(1)(a) of the Act. In the present case, the husband has failed to prove that the wife had intention to put an end to the marital relation and cohabitation and on the other hand, the material on record would go to show that she and her family members had made all efforts to join the husband, but they were all in vain."
Following which the court set aside the judgement and decree passed by the court of IV additional Principal Judge, Family Court at Bangalore, dated 15th March 2016.
Case Title: S. SHYAMALA @ KATHYAYANI v. B. N. MALLIKARJUNAIAH
Case No: MISCELLANEOUS FIRST APPEAL No.3352/2016
Citation: 2022 LiveLaw (Kar) 94
Date of Order: 14TH DAY OF MARCH, 2022
Appearance: Advocate RAMESH. P. KULKARNI for appellant
Advocate LEELADHAR.H.P for respondent
Click Here To Read/Download Judgment